A. A. PADMANBHAN versus THE STATE OF KERALA & ORS. on 16 February 2018

[2018] 1 S.C.R. 1035

A. A. PADMANBHAN

v.

THE STATE OF KERALA & ORS.

(Civil Appeal No. 2206 of 2018 etc.)

FEBRUARY 16, 2018

[A.K. SIKRI AND ASHOK BHUSHAN, JJ.]

Kerala Education Act, 1958:

s. 15(1) – Taking over of school by State Government –Propriety of – Appellants (managers of private aided schools) wereheld entitled by the Court to close down their schools – However,the State was directed to consider taking over the school – Beforethe schools were closed down, Chief Minister of the State took adecision to take over the schools – State Legislature passed resolutionto that effect – Thereafter, Notification for taking over of the school,was issued as contemplated u/s. 15 (1) – By further Notificationearlier Notification was modified – Appellants filed writ petitionschallenging both the Notifications – Petitions were dismissed – Writappeals were also dismissed – On appeal, plea was taken that theschool could not have been taken over as before the date ofNotification to that effect, the school was closed down; thatproperties of the school could have been acquired only by resortingto Right to Fair Compensation Act of 2013 and not u/s. 15; thats.15 of the Act (a State Act) is repugnant to the provisions of 2013Act (a Central Act) and hence void in view of Art. 254 ofConstitution; and that procedure of dispossessing the appellants isin violation of Art. 300A of Constitution – Held: The date on whichthe Chief Minister decided to take over, the schools were not closeddown – The said decision cannot lose its efficacy even if schoolswere actually closed before the legislature passed the resolution orbefore issuance of Notification – The decision of the State to takeover the schools which were imparting primary education was inpublic interest and was in keeping with the object of Art. 21A ofConstitution and Right to Education Act, 2009 – 1958 Act isreferable to education falling under Entry 25 of List III, whileacquisition of property is covered by s. 42 of List III – Therefore,the power u/s. 15 of 1958 Act is distinct and separate from the

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Apower under provisions of 2013 Act – Even if it is assumed that inworking of two legislations which pertain to different subject, ifthere is incidental encroachment in respect of small area, it cannotbe said that one legislation over-rides the other – Looking into pithand substance of both the legislations, it is clear that they operatein different fields and 1958 Act cannot be said to be repugnant toB2013 Act – The procedure for taking over of the property u/s. 15 isin full compliance of requirement of Art. 300A – Constitution ofIndia – Arts. 21A, 300A and Schedule VII, List III Entries 25 and 42– Right of Children to Free and Compulsory Eduction Act, 2009 –Right to Fair Compensation and Transparency in Land Acquisition,CRehabilitation and Resettlement Act, 2013.

Constitution of India:

Arts. 154 & 166 – State Government as defined u/s. 3 (60) ofGeneral Clauses Act means the Governor – All the executive powersare vested in Governor and he exercises such power either directlyDor through officers subordinate to him – Except the discretionaryfunctions, the Governor does not exercise any executive functionsindividually – When a Minister takes an action according to theRules of Business, it is both in substance and form, the action of theGovernor – General Clauses Act, 1897 – s. 3(60).EPrinciples of Doctrine of Pith and Substance:

In the event any overlapping is found in two entries of SeventhSchedule or two legislations, it is the duty of the Court to find outits true intent and purpose and to examine the particular legislationin its pith and substance – Constitution of India – VII Schedule.F

Dismissing the appeals, the Court

Conclusion

HELD: 1.1 The statutory scheme u/s. 15 of Kerala EducationAct, 1958 indicates that there are three steps in exercise of powerunder Section 15, they are: (a) satisfaction of the Governmentthat in the public interest it is necessary to take control of anyGcategory of institution; (b) resolution of the Legislative Assemblyapproving the proposal for taking over the schools; and (c)issuance of notification in the Gazette to take over with effectfrom any day specified therein any category of aided schools.Thesatisfaction of the Government in sub-section (1) of Section 15 is H

the first phase of initiating the proceeding for taking over of theinstitutions. The satisfaction is required of “the Government”.The Government refers to in the provision is the “StateGovernment”. The State Government as defined in Section 3(60)of the General Clauses Act, 1897 means the Governor in a State.The Governor, being head of a State in whom all the executivepower is vested under Article 154, exercises the power eitherdirectly or through officers subordinate to him in accordance withthe Constitution of India. Under Article 166(1), any action takenin the exercise of executive power is taken by the StateGovernment in the name of the Governor. Under Article 166sub-clause (3), the Governor is to make rules for the moreconvenient transaction of the business of the Government of theState, and for the allocation amongst the Ministers of the saidbusiness in so far as it is not business with respect to which theGovernor is by or under the Constitution required to act in hisdiscretion. Except the discretionary functions of the Governor,he does not exercise any executive functions individually orpersonally. When a Minister takes an action according to theRules of Business, it is both in substance and in form the actionof the Governor. [Paras 15 and 16] [1048-H; 1049-A-F]

Samsher Singh v. State of Punjab & Anr., (1974) 2 SCC831 : [1975] 1 SCR 814 ; A.Sanjeevi Naidu, Etc. v.State of Madras & Anr., (1970) 1 SCC 443 : [1970] 3SCR 505 – followed.

1.2 The decision to take over four Schools was taken bythe Chief Minister with the consultation of the Finance Ministeron 07.06.2016. It was not challenged before the High Court orbefore this Court that Chief Minister was not competent to takethe decision under the Rules of Business of the State regardingtake over of the schools. [Para 19] [1053-E-F]

1.3 In view of the statutory scheme under Section 15(1) of1958 Act satisfaction of the Government as contemplated bySection 15 is the satisfaction of the competent authority, who canunder the Rules of Business take a decision. Closure of schooltook place on 07.06.2015 or thereafter and on the date when theChief Minister took the decision, actual closure of the school AB

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Ahad not taken place. The fact that contempt petition was filed bythe management, which was closed on 16.06.2015 noticing thatall formalities regarding closure had been taken and in thecontempt, the statement on behalf of the State was also notedthat the State has decided to take over the institutions. Thus, onthe date when the Chief Minister took the decision, the existenceBof school cannot be denied. [Para 20] [1054-E-G]

1.4 The other two steps i.e. approval of LegislativeAssembly and issuance of notification in the Gazette are furthersteps regarding completion of the process and on the date whenGovernment was satisfied that it is in the public interest to takeCover the school, the school was in existence, the said decisioncannot be said to lose its efficacy, even if the school was actuallyclosed before issuance of notification under Section 15. Whenthe decision taken on 07.06.2016 was valid to close the school, itwas valid exercise of power and no infirmity can crept in the saidDdecision even if as per the appellant, the school was closed beforeLegislative Assembly passed the resolution or notification wasissued on 27.07.2016. [Para 21] [1054-H; 1055-A-B]

2. All the institutions, which have been taken over werethe institutions providing primary education. Under Article 21(A)Eof the Constitution of India as well as under the Right of Childrento Free and Compulsory Education Act, 2009, the State has totake all steps for fulfilling the objective to provide education tochildren upto 14 years of age seeking Primary (Upper Primaryand Lower Primary) education. The State decision to run thePrimary schools which were decided to be closed by theirFrespective management was in public interest and in the interestof the education. The High Court has rightly refused to interferewith the decision of the State Government taking over the schoolsto run the same directly by the Government. [Para 23][1055-D-F]G3.1 The Kerala Education Act, 1958 is a State enactmentreferable to education comprised in Entry 25 of List III.Acquisition of property is covered by Entry 42 List III. Entry 42List III. [Paras 25 and 26] [1056-C]

3.2 In the event any overlapping is found in two Entries ofHSeventh Schedule or two legislations, it is the duty of the Court to find out its true intent and purpose and to examine the particularlegislation in its pith and substance. [Para 32] [1057-F-G]

3.3 The State is entitled to take over a school for thepurpose and object as contained in Section 15 of 1958 Act. TheGovernment is entitled to take over the school for any of thefollowing purposes that: (i) for standardising general education inthe State, or (ii) for improving the level of literacy in any area, or(iii)for more effectively managing the aided educationalinstitutions in any area, or (iv) for bringing education of any categoryunder their direct control in the public interest. In the present casethe State Government has taken over the school in the publicinterest in the interest of education. The power under Section 15given to the State is distinct and separate from the power whichis possessed by the State under the provisions of the Act, 2013.[Paras 27 and 28] [1056-D-G]

3.4 Even if it is assumed that, in working of two legislationswhich pertain to different subject matters, there is an incidentalencroachment in respect of small area of operation of twolegislations, it cannot be held that one legislation overrides theother. Looking into the pith and substance of both the legislations,i.e., Act, 1958 and Act, 2013, it is clear that they operate indifferent fields and it cannot be said that Act, 1958 is repugnantto Act, 2013.Therefore, the Act, 1958 and Act, 2013 operate indifferent fields and Section 15 of the Act, 1958 in no manner isoverridden or repugnant to Act, 2013. There was no invalidity inthe exercise of the power of the State Government under Section15 to take over the schools. [Paras 35 and 38] [1060-E-F;1061-E]

Deep Chand v. State of U.P and others, AIR 1959 SC648 : [1959] Suppl. SCR 8 ; State of Kerala and othersv. Mar Appraem Kuri Company Limited and another(2012) 7 SCC 106 : [2012] 4 SCR 448 ; Kartar Singhv. State of Punjab, (1994) 3 SCC 569 : [1994] 2 SCR375 ; A.S. Krishna and others v. State of Madras,AIR 1957 SC 297 : [1957] SCR 399 ; Union of Indiaand others v. Shah Goverdhan L. Kabra Teachers’College, (2002) 8 SCC 228 : [2002] 3 Suppl. SCR 220– relied on.

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A3.5 Under Section 15(2) it is provided that where any schoolhas vested in the Government under sub-section (1),compensation shall be paid to the persons entitled thereto onthe basis of the market value thereof as on the date of thenotification. The owners being entitled to compensation at themarket rate on the date of notification, the procedure for takingBover the property is in full compliance of requirement of Article300A of the Constitution of India. [Paras 35 and 38] [1060-E;1061-F]

Bhusawal Municipal Council v. Nivrutti RamchandraPhalak and others, (2015) 14 SCC 327 : [2013] 17CSCR 259 – distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2206

of 2018.F

From the Judgment and Order dated 01.08.2017 of the HighCourt of Kerala at Ernakulam in Writ Appeal No.336 of 2017

WITH

Civil Appeal Nos. 2207 and 2208 of 2018.

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Mohit Paul, Harshad V. Hameed, Dileep Poolakkot, Ms. AshlyHarshad, Advs for the Appellant.

Jaideep Gupta, Sr. Adv, G. Prakash, Jishnu M.L., Ms. PriyankaPrakash, Ms. Beena Prakash, Vinay Shankar V.L., Advs for theRespondents.

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The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. Leave granted.

2. These three appeals have been filed by Ex-Managers of threeprivate aided institutions questioning the common judgment of KeralaHigh Court dated 01.08.2017 by which judgment, the Division Bench ofKerala High Court while dismissing the writ appeals filed by the appellantshave confirmed the judgment of learned Single Judge wherein theappellants have questioned the Notification issued by State of Keralataking over the aided schools, which were managed by the appellants.

3. The facts and issues raised in these appeals being similar,reference of facts and pleadings in Civil Appeal arising out of SpecialLeave Petition (C) No. 24386 of 2017 shall suffice for deciding all theseappeals.

4. The appellant had been running P.M.L.P. School, Kiralur, Districtof Thrissur in the State of Kerala, which was also an aided institution.The appellant with intention to close down the school gave a notice asrequired by Section 7(6) of the Kerala Education Act, 1958 (hereinafterreferred to as “the Act”). The Education Authorities did not permit theappellant to close the institution, which led to filing of writ petition by theappellant being W.P. (C) No. 12873 of 2015. W. P. (C) No. 12205 of2015 was filed by the Headmistress incharge of the Aided P.M.L.P.School and the President of the Parent Teachers Association as also thePresident of the School Samrakshanasamiti of the said school impugningthe steps taken by the manager of the aided school to close the aidedschool. A direction was also prayed to the State Government to takeover the school. The Writ Petition was allowed by learned Single Judgeholding that appellant was entitled to close down the school in accordancewith the provisions of the Act and Kerala Education Rules, 1959(hereinafter referred to as “the Rules”). Writ Appeals against the saidjudgment were dismissed by the Division Bench on 22.07.2015, however,in Writ Appeal filed by the Headmistress & others, a direction was issuedby the Division Bench directing the respondents to consider theirrepresentations by which it was prayed that school be taken over andrun by the State Government. The above order was questioned by theState of Kerala by filing Special Leave Petition Nos. 27822-27827 of2015. The Special Leave Petitions were dismissed on 05.10.2015 byfollowing order:- A

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A“The special leave petition is dismissed.

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A“The special leave petition is dismissed.

However, in the interest of the children in the respondent-school,Mr. V. Giri, learned senior counsel appearing for the respondenthas fairly stated that the respondent-school will continue with themtill the end of this academic year.

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We make it clear that it would be the responsibility of the State toshift these children to another school from the next academicyear.”

5. The State Authorities did not take necessary steps to close theinstitutions, hence the appellant filed a contempt application beingCContempt Case (C) No. 1045 of 2015, in which contempt application,learned Government Pleader made submission that the proceduralformalities in connection with the closing of the school have been compliedwith. Taking note of which statement, the contempt case was closeddown on 16.06.2016.D

6. Before the aforesaid date, the Chief Minister of the State tooka decision on 07.06.2016 to take over the institution of the appellantalongwith other three institutions in exercise of power under Section 15of the Act. The decision of the Chief Minister taken on 07.06.2016 wasendorsed by the Council of the Ministers on 29.06.2016. Kerala LegislativeEAssembly, unanimously passed the resolution dated 18.07.2016 to takeover the four schools under sub-section (1) of Section 15 of the Act. ANotification dated 27.07.2016 was issued as contemplated under Section15(1). A further Notification dated 03.08.2016 was issued modifyingthe earlier Notification dated 27.07.2016 to the extent that the schoolsshall vest in Government absolutely from the date of fixation ofFcompensation. The appellant aggrieved by Notification dated 27.07.2016filed a writ petition being Writ Petition (C) No. 25790 of 2016 questioningthe Notification dated 27.07.2016 as well as the Notification dated03.08.2016. Prayer for striking down Section 15 of the Act as well asdeclaring Rules 6, 7 and 8 of the Rules, 1959 as repugnant was alsoGmade. However, the prayer for challenging the provision of the Act andthe Rules does not appear to have been pressed. In the writ petition,counter affidavit was filed where it was stated that a decision was takenon 07.06.2016 to take over the institution by the State Government, whichwas before the actual closure of the institution. A resolution has beenpassed by Kerala Legislative Assembly approving the proposal;HNotification has rightly been issued. Other three writ petitions were heard alongwith connected writ petitions, which were filed by other appellantsin this group of appeals. All the writ petitions were dismissed by learnedSingle Judge vide its judgment and order dated 23.11.2016. Aggrievedagainst the judgment dated 23.11.2016, appellant filed Writ Appeal No.2360 of 2016, wherein it was contended that although the submission ofthe appellant was made that on the date when the State Governmenttook over the schools under Section 15 of the Act, the closure of theschools had already been effected but the said submission has not beencorrectly understood by the learned Single Judge. The Division Benchdismissed all the appeals on 09.12.2016 giving liberty to the appellants toapply for review of the judgment of learned Single Judge. Against thejudgment dated 09.12.2016, Special Leave Petition was also filed by theappellant in this Court, which Special Leave Petition was withdrawn bythe appellant. Appellant filed a Review Petition before learned SingleJudge for review of judgment dated 23.11.2016, which Review Petitionhas been dismissed by judgment and order dated 20.12.2016 of learnedSingle Judge. Challenging the order dated 23.11.2016 as well as theorder dated 20.12.2016 passed on the review petition, writ appeals havebeen filed before the Division Bench. The writ appeals have beendismissed by the Division Bench vide its judgment dated 01.08.2017,which judgment has been questioned before us in these appeals.

7. Learned Counsel appearing for the appellant in support of theappeal has raised the following submissions:

(a) The State Government could not have exercised power underSection 15 of the Kerala Education Act, 1958 to take overthe school which has already been closed down. TheNotification under Section 15 has been admittedly issued on27.07.2016 whereas according to the own case of therespondent the school was closed on 08.06.2016. The powerunder Section 15 can be exercised with regard to a schoolwhich is in existence. The closed down school cannot betaken over by the State Government.

(b) The school and its properties could have been acquired by theState only after resorting to Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (hereinafter shall be referred to as“2013, Act”), after making payment of compensation, deter-mined in accordance with the above-mentioned 2013, Act.

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A(c) Section 15 of the Kerala Education Act, 1958 made by theLegislature of the State falling under Entry 20 List III of theConcurrent List is in conflict and repugnant to the provisions ofthe 2013, Act, made by the Parliament under Entry 42 List III ofthe Concurrent List, is void in view of the Article 254 of theConstitution of India. The State Government has dispossessedBthe petitioner under the guise of applying provision of law that isnot applicable to the subject matter and the procedure ofdispossessing the petitioner is in violation of Article 300A of theConstitution of India.

(d) The closure of the school had attained finality by decision ofCdismissal of SLP (c) No. 27827 of 2015, when this Court passedorder on 05.10.2015.

8. Refuting the above submission learned Senior Counselappearing for the State of Kerala submits that the State Governmenthas validly exercised its power under Section 15 of the Kerala EducationDAct, 1958. The decision was taken by the Chief Minister to take overthe school on 07.06.2016 on which date the school was not actuallyclosed down. Hence, there is no substance in the contention of theappellant that school had already been closed down and could not havebeen taken over by the State Government. It is submitted that decisionEof the Chief Minister dated 07.06.2016 was ratified by the Council ofMinisters vide decision dated 29.06.2016. The issuance of notificationis a step in consequence of decision to take over the school and there isno illegality in the issuance of Notification dated 27.07.2016. It issubmitted that the provision of Section 15 of the Kerala Education Act,1958 operates in a different field to that of the provisions of the 2013,FAct. Neither there is a conflict nor Section 15 is in any mannerrepugnant to 2013, Act. Both the Acts operate in their own fields. Theaction of taking over of the schools by State is for running the school incompliance of its obligation to provide education to the primary schoolstudents. Section 15 itself, contemplates the payment of compensationGat market rate and the Collector has already determined the marketvalue of the schools, details of which has already been brought on recordby means of the counter affidavit. One of the schools which were takenover accepted the compensation. One of the institutions which had filedthe Writ Petition (C) No. 25622 of 2016 has not challenged the judgmentof the learned Single Judge and had accepted the same.H

9. We have considered the submissions of the learned counsel forthe parties and perused the record.

RELEVANT STATUTORY PROVISIONS

10. The Kerala Education Act, 1958 was enacted for the betterorganisation and development of the educational institutions in the Stateafter obtaining the assent of the President. Section 2 sub-section (1)defines the “Aided Schools” and the “School” is defined in Section 2sub-section (9) in the following manner:

“2.(1). “aided school” means a private school which isrecognised by and is receiving aid from the Government, butshall not include educational institutions entitled to receivegrants under Article 337 of the Constitution of India, exceptin so far as they are receiving aid in excess of the grants towhich they are so entitled;

2. (9). “School” includes the land, buildings, play-groundsand hostels of the school and the movable properties such asfurniture, books, apparatus, maps and equipments pertain-ing to the school:”

11. Section 7 of the Kerala Education Act, 1958, which deals withthe “Managers of Schools”, contains the provision under Section 7 sub-section (6) prohibiting the Manager from closing down school unlessone year’s notice is given. Section 7 sub-section (6) is quoted as below:

“7.(6) No manager shall close down any school unless oneyear’s notice, expiring with the 31[st] May of any year, of hisintention so to do, has been given to the officer authorisedby the Government in this behalf.”

Further Rule 24 of the Kerala Education Rules, 1959 provides forclosure of private schools which is to the following effect:

“24. Closure of private schools: - (1) No private school shallbe closed down without giving the Director one year’s noticeexpiring with the 31[st] May of any year of the intention to doso.

[(2) The Director may, after considering all aspects of thequestion, grant permission for the closure of the school andrecognition of such school shall lapse. No application for A

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withdrawal of the notice after the issue of permission shallbe entertained unless adequate reasons are adduced to thesatisfaction of the Director. The order of the Director in thematter shall be final.]”

12. Section 15 of the Act contains a heading “Power to acquireBany category of schools”. Section 15 which is relevant for the presentcase is as follows:

“15. Power to acquire any category of schools - (1) If theGovernment are satisfied that for standardising generaleducation in the State or for improving the level of literacy inany area or for more effectively managing the aidededucational institutions in any area or for bringing educationof any category under their direct control in the public interestit is necessary to do so, they may, by notification in the Gazette,take over with effect from any day specified therein anycategory of aided schools in any specified area or areas;and such schools shall vest in the Government absolutely witheffect from the day specified in such notification; C

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Provided that no notification under this sub-section shall beissued unless the proposal for the taking over is supportedby the resolution of the Legislative Assembly.

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(2) Where any school has vested in the Government undersub-section (1), compensation shall be paid to the personsentitled thereto on the basis of the market value thereof as onthe date of the notification:

Provided that where any property, movable or immovable hasbeen acquired, constructed or improved for the purpose ofthe school with the aid or grant given by the Government forsuch acquisition, construction or improvement, compensationpayable shall be fixed after deducting from the market valuethe amounts of such aids or grants:

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Provided further that in the case of movable properties thecompensation payable shall be the market value thereof onthe date of the notification or the actual cost thereof less thedepreciation, whichever is lower.

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(3) In determining the amount of compensation and itsapportionment among the persons entitled thereto the Collectorshall follow such procedure as may be prescribed.

(4) Any person aggrieved by an order of the Collector may,in the prescribed manner, appeal to the District Court withinwhose jurisdiction the school is situated within sixty days ofthe date of such award and the decision of the Judge shall befinal.

(5) Nothing in this section shall apply to minority schools.”

13. One of the principle submissions, which has been raised bycounsel for the appellant, is that on the date when notification underSection 15 was issued, i.e. on 27.07.2016, the school having been alreadyclosed, the power under Section 15 of the Act could not have beenexercised. Learned counsel submits that after the writ petition filed bythe management was allowed by High Court permitting closure of theschool, which was affirmed by the Division Bench as well as by thisCourt on 05.10.2015, school stood closed, which disabled the StateGovernment to exercise the power under Section 15. We have alreadynoticed the factum of filing of writ petition by the management for closureof the school, which stood allowed on 08.06.2015. Writ appeals werefiled against the judgment of learned Single Judge, which were decidedby the Division Bench on 22.07.2015. It is to be noticed that aggrievedby the judgment of learned Single Judge, writ appeals were also filed bythe Headmistress of the institution as well as Parent-Teachers Associationpraying for the relief directing the State Government to take over theinstitutions. In this context, it will be useful to refer to Para 27 of thejudgment of the Division Bench by which while affirming the judgmentof the learned Single Judge, the Division Bench also directed the StateGovernment to decide the representations, which were submitted seekingdirections to take over the schools by the Government. Para 27 is asfollows:- “….. However, it essentially is a matter to be decided by theGovernment and therefore, though we cannot issue any bindingdirection to the Government, but can only clarify that the authoritiesbefore whom Exts.P17 and P18 representations in W.P.(C) 12205/15 are pending will bestow their attention to this claim and willtake appropriate decision on the representations.”

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A14. As noticed above, against the writ appeals, Special LeavePetition was filed by the State of Kerala, which was dismissed on05.10.2015. However while dismissing the petition, a direction was giventhat children of the schools shall be allowed to continue till the end of theacademic year and thereafter they may be shifted to another school.The management filed Contempt Petition alleging that orders of the CourtBregarding closure of schools are not being given effect to by the State,which contempt was closed on 16.06.2016 noticing the statement ofGovernment pleader that all formalities regarding closure of the schoolhave been complied with. In the writ petition filed by the manager,learned Single Judge in its judgment dated 23.11.2016 has returned theCfindings regarding the actual date of closure of the school. In Para 9 ofthe judgment, following was held:-

“…..The closure of the schools was effected on 10.06.2016 inthe case of W.P.(C) No. 25292/2016, on 09.06.2016 in the caseof W.P.(C) No.25619/2016, on 08.06.2016 in the case of W.P.(C)DNo. 25622/2016, on 07.06.2016 in the case of W.P.(C) No. 25695/2016 and on 10.06.2016 in the case of W.P.(C) No. 25790/2016.The affidavits filed on behalf of the State Government in theContempt cases indicate that the handing over of all records andother procedural formalities for effecting a closure of the schoolswas completed shortly thereafter. The contempt of court cases,Ethat were filed by the petitioners herein, were all disposed afterrecording the fact of closure of the schools, based on the affidavitfiled on behalf of the State Government. It deserves mentionhere that, in the affidavit filed on behalf of the State, it was clearlystated that the State Government had already taken a decision toFacquire the schools in public interest by invoking the powers underSection 15 of the KE Act.”

15. Learned Single Judge as well as the Division Bench has alsonoticed that the Chief Minister has already taken a decision on 07.06.2016after consultation with the Finance Minister regarding exercise of powerGunder Section 15 to close the schools. Section 15(1) of the Act used thewords “If the Government are satisfied …………… they may, bynotification in the Gazette, take over with effect from any day specifiedtherein ……………… provided that no notification under this sub-sectionshall be issued unless the proposal for the taking over is supported by theresolution of the Legislative Assembly.” The above statutory schemeH

indicates that there are three steps in exercise of power under Section15, they are: (a) satisfaction of the Government that in the public interestit is necessary to take control of any category of institution; (b) resolutionof the Legislative Assembly approving the proposal for taking over theschools; and (c) issuance of notification in the Gazette to take over witheffect from any day specified therein any category of aided schools.

16. The satisfaction of the Government in sub-section (1) of Section15 is the first phase of initiating the proceeding for taking over of theinstitutions. The satisfaction is required of “the Government”. TheGovernment refers to in the provision is the “State Government”. TheState Government as defined in Section 3(60) of the General ClausesAct, 1897 means the Governor in a State. The Governor, being head ofa State in whom all the executive power is vested under Article 154,exercises the power either directly or through officers subordinate tohim in accordance with the Constitution of India. Under Article 166(1),any action taken in the exercise of executive power is taken by the StateGovernment in the name of the Governor. Under Article 166 sub-clause(3), the Governor is to make rules for the more convenient transactionof the business of the Government of the State, and for the allocationamongst the Ministers of the said business in so far as it is not businesswith respect to which the Governor is by or under the Constitution requiredto act in his discretion. Except the discretionary functions of the Governor, he does not exercise any executive functions individually or personally.When a Minister takes an action according to the Rules of Business, it isboth in substance and in form the action of the Governor. The ConstitutionBench of this Court in Samsher Singh Vs. State of Punjab & Anr.,(1974) 2 SCC 831 while considering the constitutional provisionsregarding function of the President of India and Governor of the Statelaid down following in Paragraphs 30 and 31:-

“30. In all cases in which the President or the Governor exerciseshis functions conferred on him by or under the Constitution withthe aid and advice of his Council of Ministers he does so by makingrules for convenient transaction of the business of the Governmentof India or the Government of the State respectively or by allocationamong his Ministers of the said business, in accordance withArticles 77(3) and 166(3) respectively. Wherever the Constitutionrequires the satisfaction of the President or the Governor for theexercise of any power or function by the President or the Governor, A

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Aas the case may be, as for example in Articles 123, 213, 311(2)proviso (c), 317, 352(1), 356 and 360 the satisfaction required bythe Constitution is not the personal satisfaction of the President orof the Governor but is the satisfaction of the President or of theGovernor in the constitutional sense under the Cabinet system ofGovernment. The reasons are these. It is the satisfaction of theBCouncil of Ministers on whose aid and advice the President or theGovernor generally exercises all his powers and functions. NeitherArticle 77(3) nor Article 166(3) provides for any delegation ofpower. Both Articles 77(3) and 166(3) provide that the Presidentunder Article 77(3) and the Governor under Article 166(3) shallCmake rules for the more convenient transaction of the business ofthe Government and the allocation of business among the Ministersof the said business. The Rules of Business and the allocationamong the Ministers of the said business all indicate that thedecision of any Minister or officer under the Rules of Businessmade under these two articles viz. Article 77(3) in the case of theDPresident and Article 166(3) in the case of the Governor of theState is the decision of the President or the Governor respectively.

31. Further the Rules of Business and allocation of business amongthe Ministers are relatable to the provisions contained in Article53 in the case of the President and Article 154 in the case of the E

Governor, that the executive power shall be exercised by thePresident or the Governor directly or through the officerssubordinate. The provisions contained in Article 74 in the case ofthe President and Article 163 in the case of the Governor thatthere shall be a Council of Ministers to aid and advise the President or the Governor, as the case may be, are sources of the Rules ofBusiness. These provisions are for the discharge of the executivepowers and functions of the Government in the name of thePresident or the Governor. Where functions entrusted to aMinister are performed by an official employed in the Minister’sdepartment there is in law no delegation because constitutionallythe act or decision of the official is that of the Minister. The officialis merely the machinery for the discharge of the functions entrustedto a Minister (see Halsbury’s Laws of England 4th Ed., Vol. I,paragraph 748 at p. 170 and Carltona Ltd. v. WorksCommissioners).”

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17. An earlier Constitution Bench judgment, i.e., A.Sanjeevi Naidu,Etc. Vs. State of Madras & Anr., (1970) 1 SCC 443, considered Section68(C) of the Motor Vehicles Act, 1939, which Section provided asfollows:-

“…………Where any State transport undertaking is of opinionthat for the purpose, of providing an efficient, adequate, economicaland properly co-ordinated road transport service, it is necessaryin the public interest that road transport services in general or anyparticular class of such service in relation to any area or route orportion thereof should be run and operated by the State transportundertaking, whether to the exclusion, complete or partial of otherpersons or otherwise, the State transport undertaking may preparea scheme giving particulars of the nature of the services proposedto be rendered, the area or route proposed to be covered andsuch other particulars respecting thereto as may be prescribed,and shall cause every such scheme to be published in the OfficialGazette and also in such other manner as the State Governmentmay direct.”

18. A perusal of Section 68 sub-clause(C) indicates that the wordsused in the provision “where any State transport undertaking is of opinion…………., the State transport undertaking may prepare a scheme…………, and shall cause every such scheme to be published in theOfficial Gazette”. In the Rules of Business pertaining to Rule 23(A) ofthe Madras Government Business Rules, powers and functions whichState Transport Undertaking may exercise under Section 68(C) were tobe discharged on behalf of the State Government by the Secretary tothe Government of Madras in the Industries, Labour and HousingDepartment. The Constitution Bench held that decision of the Secretaryto the Government was the decision of the Governor as per BusinessRules. In Para Nos. 10, 11 and 12, following was stated:- “10. The cabinet is responsible to the Legislature for every actiontaken in any of the Ministries. That is the essence of jointresponsibility. That does not mean that each and every decisionmust be taken by the cabinet. The political responsibility of theCouncil of Ministers does not and cannot predicate the personalresponsibility of the Council of Ministers to discharge all or any ofthe Governmental functions. Similarly an individual Minister is A

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Aresponsible to the Legislature for every action taken or omitted tobe taken in his ministry. This again is a political responsibility andnot personal responsibility. Even the most hard working Ministercannot attend to every business in his department. If he attemptsto do it, he is bound to make a mess of his department. In everywell planned administration, most of the decisions are taken byBthe civil servants who are likely to be experts and not subject topolitical pressure. The Minister is not expected to burden himselfwith the day-to-day administration. His primary function is to laydown the policies and programmes of his ministry while the Councilof Ministers settles the major policies and programmes of theCGovernment. When a civil servant takes a decision, he does notdo it as a delegate of his Minister. He does it on behalf of theGovernment. It is always open to a Minister to call for any file inhis ministry and pass orders. He may also issue directions to theofficers in his ministry regarding the disposal of Governmentbusiness either generally or as regards any specific case. SubjectDto that over all power, the officers designated by the “Rules” orthe standing orders, can take decisions on behalf of theGovernment. These officers are the limbs of the Government andnot its delegates.

11. In Emperor v. Sibnath Banerji1 construing Section 59(3) ofthe Government of India Act, 1935, a provision similar to Article166(3), the Judicial Committee held that it was within thecompetence of the Governor to empower a civil servant to transactany particular business of the Government by making appropriaterules. In that case their Lordships further observed that theMinisters like civil servants are subordinates to the Governor. InKalyan Singh v. State of U.P.2 this Court repelling the contentionthat the opinion formed by an official of the Government does notfulfil the requirements of Section 68(C) observed:

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“The opinion must necessarily be formed by somebody towhom, under the rules of business, the conduct of the businessis entrusted and that opinion, in law, will be the opinion of theState Government. It is stated in the counter-affidavit that allthe concerned officials in the Department of Transportconsidered the draft scheme and the said scheme was finally G

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approved by the Secretary of the Transport Department beforethe notification was issued. It is not denied that the Secretaryof the said Department has power under the rules of businessto act for the State Government in that behalf. We, therefore,hold that in the present case the opinion was formed by theState transport undertaking within the meaning of Section 68(C)of the Act, and that, there was nothing illegal in the manner ofinitiation of the said Scheme.”

12. In Ishwarlal Girdharlal Joshi, etc. v. State of Gujarat3 thisCourt rejected the contention that the opinion formed by the DeputySecretary under Section 17(1) of the Land Acquisition Act cannotbe considered as the opinion of the State Government. Afterreferring to the rules of business regulating the Governmentbusiness, this Court observed at p. 282:

“In our case the Secretaries concerned were given thejurisdiction to take action on behalf of Government and satisfythemselves about the need for acquisition under Section 6, theurgency of the matter and the existence of waste and arablelands for the application of sub-sections (1) and (4) of Section17. In view of the Rules of business and the instructions theirdetermination became the determination of Government andno exception could be taken.”

19. The decision to take over four Schools was taken by the ChiefMinister with the consultation of the Finance Minister on 07.06.2016. Itwas not challenged before the High Court or before this Court that ChiefMinister was not competent to take the decision under the Rules ofBusiness of the State regarding take over of the schools. What is beingcontended is that the school was to continue to exist till the date thenotification under Section 15 is issued for taking over of the school andin event the school is closed, any date prior to the date of notification, thepower under Section 15 cannot be exercised. The management of theinstitution has also filed a Review Petition after judgment of learnedSingle Judge emphasising above issue. The learned Single Judge haselaborately dealt the issue and held that satisfaction as contemplated bySection 15 was arrived on at 07.06.2016 when Chief Minister took thedecision. Learned Single Judge (Justice A.K.Jayasankaran Nambiar)extensively considered the issue and expressed following opinion:- A

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A“……… The exercise of the power is made conditional only onthe State Government being satisfied that one or all of the factorsindicated therein exist, rendering it necessary for the StateGovernment to act in public interest. In my view, it is at this stagealone that an aided school must exist, as the subject matter, inrelation to which the power of the State Government is exercised.BThe procedure to be complied with in connection with the takeover, such as the framing of a proposal and placing it before theLegislative Assembly of the State for its approval, before issuinga formal notification, only ensures a valid implementation, orexecution, of the decision that is taken in exercise of the powerCconferred under the Section. It follows, therefore, that once anaided school is identified as the subject matter of a proposed takeover, its closure during the stage of implementation of the decisionof the State Government is of no consequence, and will not affecta valid exercise of power by the State Government. As regardsthe exercise of power by the State Government it needs to beDnoted that the Cabinet decision on 29.06.2016 had the effect ofratifying the decision of the Chief Minister taken on 07.06.2016and therefore the decision of the State Government effectivelyrelates back to 07.06.2016…………..”

20. Looking to the statutory scheme under Section 15(1), we areEof the opinion that satisfaction of the Government as contemplated bySection 15 is the satisfaction of the competent authority, who can underthe Rules of Business take a decision. We have noticed above thefindings of learned Single Judge regarding the date of actual closure ofthe school, which finding has been specially affirmed by the DivisionFBench in writ appeal that closure of school took place on 07.06.2015 orthereafter and on the date when the Chief Minister took the decision,actual closure of the school was not taken place. The fact that contemptpetition was filed by the management, which was closed on 16.06.2015noticing that all formalities regarding closure had been taken and in the contempt, the statement on behalf of the State was also noted that theGState has decided to take over the institutions. Thus, on the date whenthe Chief Minister took the decision, the existence of school cannot bedenied.21. The other two steps as noticed above, i.e. approval ofLegislative Assembly and issuance of notification in the Gazette areH

further steps regarding completion of the process and on the date whenGovernment was satisfied that it is in the public interest to take over theschool, the school was in existence, the said decision cannot be said tolose its efficacy, even if the school was actually closed before issuanceof notification under Section 15. When the decision taken on 07.06.2016was valid to close the school, it was valid exercise of power and noinfirmity can crept in the said decision even if as per the appellant, theschool was closed before Legislative Assembly passed the resolution ornotification was issued on 27.07.2016. It could have been open to theLegislative Assembly not to approve the proposal on account of anyreason including any subsequent valid reason, but Legislative Assemblyhaving approved, no capital can be gained by the appellant on the strengthof the above submission.

22. We fully endorse the view taken by the learned Single Judgethat on the date when the Government took the decision, i.e., the ChiefMinister took a decision on 07.06.2016 to take over the schools; theschools were not actually closed.

23. There is one more reason due to which the decision taken bythe State Government as approved by the Legislative Assembly andnotified in the Gazette needs no interference. The reason is that all theinstitutions, which have been taken over were the institutions providingprimary education. Under Article 21(A) of the Constitution of India aswell as under the Right of Children to Free and Compulsory EducationAct, 2009, the State has to take all steps for fulfilling the objective toprovide education to children upto 14 years of age seeking Primary (UpperPrimary and Lower Primary) education. The State decision to run thePrimary schools which were decided to be closed by their respectivemanagement was in public interest and in the interest of the education.The High Court has rightly refused to interfere with the decision of theState Government taking over the schools to run the same directly bythe Government.

24. Another limb of argument of the appellant forcefully put isthat acquisition of properties of the schools, if at all, was to be undertakenby the State, the State ought to have taken recourse of the provisions ofthe Act, 2013. It is contended that owners of the schools are beingdeprived of their right of property. They are clearly entitled forcompensation in accordance with the provisions of Act, 2013. Learnedcounsel submits that Act, 2013 being a Parliamentary Act shall override A

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25. The Kerala Education Act, 1958 is a State enactment referableto education. The Entry of Education prior to its substitution in List IIIwas contained in List II Entry 11, by the Constitution (Forty-SecondBAmendment) Act, 1976. Entry 11 List II was omitted and the subjectwas transferred to be comprised in Entry 25 of List III, which is asfollows:

“25. Education, including technical education, medicaleducation and universities, subject to the provisions of entriesC63, 64, 65 and 66 of List I; vocational and technical trainingof labour.”

26. Acquisition of property is covered by Entry 42 List III. Entry42 List III is as follows:

“42. Acquisition and requisitioning of property.”D

27. As noted above, the present is a case where school is beingtaken over by the State in accordance with Section 15 which is a part ofthe Scheme under the Kerala Education Act, 1958. The State is entitledto take over a school for the purpose and object as contained in Section15. The Government is entitled to take over the school for any of theEfollowing purposes that:

i) for standardising general education in the State, or

ii) for improving the level of literacy in any area, or

iii) for more effectively managing the aided educationalFinstitutions in any area, or

iv) for bringing education of any category under their directcontrol in the public interest.

28. In the present case the State Government has taken over theschool in the public interest in the interest of education. The power underGSection 15 given to the State is distinct and separate from the powerwhich is possessed by the State under the provisions of the Act, 2013.

29. It is contended that Section 15 being repugnant to Act, 2013which being a Parliamentary enactment, it shall override the Act, 1958in view of Article 254 sub-clause (1) of the Constitution of India.H

30. The principles for ascertaining the inconsistency/ repugnancybetween two statutes were laid down by this Court in Deep Chand Vs.State of U.P and others, AIR 1959 SC 648. K. Subba Rao, J. speakingfor the Court stated following in paragraph 29:

“29……Repugnancy between two statutes may thus beascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the twoprovisions;

(2) Whether Parliament intended to lay down an exhaustivecode in respect of the subject-matter replacing the Act ofthe State Legislature and

(3) Whether the law made by Parliament and the law madeby the State Legislature occupy the same field.”

31. This Court in State of Kerala and others Vs. Mar AppraemKuri Company Limited and another, (2012) 7 SCC 106, in paragraph47 held that:

“47. The question of repugnancy between parliamentarylegislation and State legislation arises in two ways. First, wherethe legislations, though enacted with respect to matters in theirallotted spheres, overlap and conflict. Second, where the twolegislations are with respect to matters in the Concurrent Listand there is a conflict. In both the situations, theParliamentary legislation will predominate, in the first, byvirtue of non obstante clause in Article 246(1); in the second,by reason of Article 254(1)”.

There cannot be any dispute to the proposition laid down by thisCourt to the State of Kerala case (supra).

32. This Court has time and again emphasised that in the eventany overlapping is found in two Entries of Seventh Schedule or twolegislations, it is the duty of the Court to find out its true intent and purposeand to examine the particular legislation in its pith and substance. InKartar Singh Vs. State of Punjab, (1994) 3 SCC 569, in paragraphs59 and 60 following has been held:

“59....But before we do so we may briefly indicate theprinciples that are applied for construing the entries in the A

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Alegislative lists. It has been laid down that the entries mustnot be construed in a narrow and pedantic sense and thatwidest amplitude must be given to the language of theseentries. Sometimes the entries in different lists or the same listmay be found to overlap or to be in direct conflict with eachother. In that event it is the duty of the court to find out itsBtrue intent and purpose and to examine the particularlegislation in its ‘pith and substance’ to determine whether itfits in one or other of the lists. [See : Synthetics and ChemicalsLtd. v. State of U.P.; India Cement Ltd. v. State of T.N.]

60. This doctrine of ‘pith and substance’ is applied when theClegislative competence of a legislature with regard to aparticular enactment is challenged with reference to the entriesin the various lists i.e. a law dealing with the subject in onelist is also touching on a subject in another list. In such acase, what has to be ascertained is the pith and substance ofDthe enactment. On a scrutiny of the Act in question, if found,that the legislation is in substance one on a matter assignedto the legislature enacting that statute, then that Act as a wholemust be held to be valid notwithstanding any incidentaltrenching upon matters beyond its competence i.e. on a matterincluded in the list belonging to the other legislature. To sayEdifferently, incidental encroachment is not altogetherforbidden.”

33. In A.S. Krishna and others Vs. State of Madras, AIR 1957SC 297 this Court laid down following in paragraph 10:

F“10. This point arose directly for decision before the PrivyCouncil in Prafulla Kumar Mukherjee v. The Bank ofCommerce, Ltd. [1946 74 I.A. 23 There, the question waswhether the Bengal Money-Lenders Act, 1940, which limitedthe amount recoverable by a money-lender for principal andinterest on his loans, was valid in so far as it related toGpromissory notes. Money-lending is within the exclusivecompetence of the Provincial Legislature under Item 27 ofList II, but promissory note is a topic reserved for the center,vide List I, Item 28. It was held by the Privy Council that thepith and substance of the impugned legislation begin money-Hlending, it was valid notwithstanding that it incidentally encroached on a field of legislation reserve for the centerunder Enter 28. After quoting its approval the observationsof Sir Maurice Gwyer C.J. in Subrahmanyan Chettiar v.Muttuswami Goundan, (supra) above quoted, Lord Porterobserved :

“Their Lordships agree that this passage correctlydescribes the grounds on which the rule is founded, andthat it applies to Indian as well as to Dominion legislation.

No doubt experience of past difficulties has made theprovisions of the Indian Act more exact in some particulars,and the existence of the Concurrent List has made it easier todistinguish between those matters which are essential indetermining to which list particular provision should beattributed and those which are merely incidental. But theoverlapping of subject-matter is not avoided by substitutingthree lists for two, or even by arranging for a hierarchy ofjurisdictions. Subjects must still overlap, and where they do,the question must be asked what in pith and substance is theeffect of the enactment of which complaint is made, and inwhat list is its true nature and character to be found. If thesequestions could not be asked, must beneficent legislationwould be satisfied at birth, and many of the subjects entrustedto Provincial legislation could never effectively be dealtwith.”...”

34. Further in Union of India and others Vs. Shah GoverdhanL. Kabra Teachers’ College, (2002) 8 SCC 228 in paragraph 7following was laid down:

“7. It is further a well-settled principle that entries in thedifferent lists should be read together without giving a narrowmeaning to any of them. Power of Parliament as well as the StateLegislature are expressed in precise and definite terms. While anentry is to be given its widest meaning but it cannot be so interpretedas to override another entry or make another entry meaninglessand in case of an apparent conflict between different entries, it isthe duty of the court to reconcile them. When it appears to the courtthat there is apparent overlapping between the two entries thedoctrine of “pith and substance” has to be applied to find out thetrue nature of a legislation and the entry within which it would fall.

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AIn case of conflict between entries in List I and List II, the same hasto be decided by application of the principle of “pith and substance”.The doctrine of “pith and substance” means that if an enactmentsubstantially falls within the powers expressly conferred by theConstitution upon the legislature which enacted it, it cannot be heldto be invalid, merely because it incidentally encroaches on mattersBassigned to another legislature. When a law is impugned as beingultra vires of the legislative competence, what is required to beascertained is the true character of the legislation. If on such anexamination it is found that the legislation is in substance one on amatter assigned to the legislature then it must be held to be valid inCits entirety even though it might incidentally trench on matters whichare beyond its competence. In order to examine the true characterof the enactment, the entire Act, its object, scope and effect, isrequired to be gone into. The question of invasion into the territoryof another legislation is to be determined not by degree but bysubstance. The doctrine of “pith and substance” has to be appliedDnot only in cases of conflict between the powers of two legislaturesbut in any case where the question arises whether a legislation iscovered by particular legislative power in exercise of which it ispurported to be made.”

35. Even if it is assumed that, in working of two legislations whichEpertain to different subject matters, there is an incidental encroachmentin respect of small area of operation of two legislations, it cannot be heldthat one legislation overrides the other. When we look into the pith andsubstance of both the legislations, i.e., Act, 1958 and Act, 2013, it is clearthat they operate in different fields and it cannot be said that Act, 1958 isFrepugnant to Act, 2013. It is also relevant to note that under Section15(2) it is provided that where any school has vested in the Governmentunder sub-section (1), compensation shall be paid to the persons entitledthereto on the basis of the market value thereof as on the date ofthe notification.

36. In the counter-affidavit in the present case, the State has clearlyGmentioned that compensation has been determined by the Collector. Inparagraph 12 of the counter-affidavit following has been stated:

“12.Out of the 4 schools that have been taken over byGovernment, compensations have been sanctioned to theerstwhile Managers of the following 3 schools as per marketHvalue.

(i) A.U.P. School, MalaparambaRs.5,85,86,710/- as per G.O.(Rt) No.181/2017(GEdn dated 25.01.2017.

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(ii) A.U.P. School, Palat, Kozhikode -Rs.56,09,947/- as per G.O.(Rt)No.2289/2017/Gedn dated 11.07.2017&BG.O.(Rt)No.6047/2017/Fin dated31.07.2017.

(iii) P.M.L.P. School, Kiraloor, ThrissurRs.79,54,550/- as per G.O.(Rt)No. 2289/2017/Gedn dated 11.07.2017 & G.O.(Rt) No. 6047/2017/Fin dated31.07.2017.

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37. It is also relevant to note that under Section 15 sub-section(4), any person aggrieved by an order of the Collector has a right toappeal to the District Court.

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38. Applying the ratio as laid down by this Court in the abovenoted cases, we conclude that Act, 1958 and Act, 2013 operate in differentfields and Section 15 of the Act, 1958 in no manner is overridden orrepugnant to Act, 2013. There was no invalidity in the exercise of thepower of the State Government under Section 15 to take over the schools.The owners being entitled to compensation at the market rate on thedate of notification, the procedure for taking over the property is in fullcompliance of requirement of Article 300A of the Constitution of India.We, thus, do not find any merit in this submission of learned counsel forthe appellant.

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39. Learned counsel for the appellant has placed reliance on thejudgment of this Court in Bhusawal Municipal Council Vs. NivruttiRamchandra Phalak and others, (2015) 14 SCC 327. BhusawalMunicipal Council had filed the appeal against the interlocutory orderpassed by the Bombay High Court by which interim relief was grantedto the appellant to the extent of payment of 50% of the enhanced amountof compensation as awarded by the Reference Court in the landacquisition proceedings. The Council challenged the said order andcontended that the land was acquired for the public purpose, the Council-appellant does not have sufficient funds to pay the enhancedcompensation, this Court may grant stay of payment of the enhanced F

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Aamount of compensation awarded by the Reference Court. In the abovecontext following observation was made by this Court in paragraph 8:

“8. We see no justification to accept the submissions soadvanced on behalf of the appellant Council. Undoubtedly,the appellant might be willing to meet its constitutional orBlegal obligation to open a primary school for impartingeducation to children below 14 years of age but the questiondoes arise as to whether the appellant Council has a right tomeet a public purpose or a constitutional obligation at thecost of individual citizens by depriving them of theirconstitutional rights under Article 300-A of the Constitution?”C

40. This Court dismissed the appeal filed by the Council and hadmade the observation that right to property is not only a constitutional ora statutory right but also a human right. Therefore, in case the personaggrieved is deprived of the land without making the payment ofcompensation, it would be tantamount to forcing the said uprooted personsDto become vagabond. There cannot be any dispute to the propositionlaid down by this Court as above. For the land acquired under the LandAcquisition Act compensation determined under the provisions of theLand Acquisition Act, 1894 is required to be paid to the land owner. Theorder granting interim relief to the appellant was held to be just order inwhich this Court refused to interfere.E

41. In the above case no such proposition has been laid down bythis Court which may help the appellant. The present is not a case ofacquisition under the Land Acquisition Act. As noted above, underSection 15 sub-section (4) of Act, 1958, the payment of compensationhas to be made in accordance with the market value on the date ofFnotification under Section 15.

42. In view of the foregoing discussion, we do not find any groundto interfere with the judgments of the learned Single Judge as well asDivision Bench of the Kerala High Court dismissing the writ petition andwrit appeal of the appellant.G

43. In the result, all the appeals are dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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